Santos v. Alabama Department of Corrections et al

Filing 51

REPORT AND RECOMMENDATIONS re 50 to Deny MOTION for Leave to Appeal in forma pauperis filed by Nedolandez Santos. Signed by Magistrate Judge Bert W. Milling, Jr on 6/29/11. referred to Judge Granade (Note: Clerk is directed to foward to Business Manager at Ventress Correctional, and ADOC after adoption) copy to Appellant and Finance. (jal)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

NEDOLANDEZ SANTOS

:

Plaintiff,

:

vs.

:

ALABAMA DEPARTMENT OF
CORRECTIONS, et al.,

CIVIL ACTION 11-0059-CG-M

:
:

Defendants.
REPORT AND RECOMMENDATION
Pending before the Court is Plaintiff’s Application to
Proceed Without Prepayment of Fees and Affidavit, construed and
docketed as (and hereinafter referred to as) a Motion For Leave
to Appeal In Forma Pauperis (Doc. 50), which has been referred
to the undersigned pursuant to 28 U.S.C. § 636(b)(3).

For the

reasons set forth below, it is recommended that the Motion for
Leave to Appeal In Forma Pauperis be denied because the appeal
is frivolous and not taken in good faith.
On May 2, 2011, Plaintiff Nedolandez Santos, an Alabama
prison inmate proceeding pro se in this 42 U.S.C. § 1983 action,
filed a Notice of An Appeal (Doc. 44) of the District Judge’s
Order dated April 15, 2011 (Doc. 39), adopting the Report and
Recommendation (Doc. 30), and dismissing this action without
prejudice pursuant to 28 U.S.C. § 1915(g) because Plaintiff had
three prior actions that were frivolous, malicious, or failed to

state a claim upon which relief can be granted (which he had
failed to report, as required, in his complaint in this action);
he did not satisfy the exception to § 1915(g) that, at the time
of filing this complaint, he was under imminent danger of
serious physical injury; and he had not paid the full $350.00
filing fee at the time of filing this action (Doc. 30).
Judgment was also entered on April 15, 2011 (Doc. 40).
Plaintiff filed his request to proceed on appeal in forma
pauperis on June 27, 2011 (Doc. 50).
Notwithstanding a finding of economic eligibility, “[a]n
appeal may not be taken in forma pauperis if the trial court
certifies in writing that it is not taken in good faith.”

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U.S.C. § 1915(a)(3); see also Busch v. County of Volusia, 189
F.R.D. 687, 691 (M.D. Fla. 1999).

An appeal is not taken in

good faith if it is plainly frivolous.

United States v.

Youngblood, 116 F.3d 1113, 1115 (5th Cir. 1997); DeSantis v.
United Technologies Corp., 15 F.Supp.2d 1285, 1289 (M.D. Fla.
1998)(appeal is not taken in good faith when it fails to “seek[]
appellate review of any issue that is not frivolous”), aff’d,
193 F.3d 522 (11th Cir. 1999); United States v. Durham, 130
F.Supp. 445 (D.C. 1955)(“good faith” means the existence of a
substantial question or one which has merit and is not
frivolous); Sejeck v. Singer Mfg. Co., 113 F.Supp. 281 (D.C.
N.J. 1953) (“in good faith” means that points on which appeal is
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taken are reasonably arguable); United States v. Gicinto, 114
F.Supp. 929 (W.D. Mo. 1953) (the application should be denied if
the trial court is of the opinion that the appeal is frivolous,
and without merit, and a futile proceeding); see generally
Napier V. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (action
is frivolous for § 1915 purposes if it is without arguable merit
either in law or in fact); Bilal v. Driver, 251 F.3d 1346, 1349
(11th Cir. 2001) (same).

This Court, in its Order adopting the

Report and Recommendation, after a de novo determination of
those portions of the Recommendation to which objection was
made, found that Plaintiff had failed to meet the requirements
of 28 U.S.C. § 1915(g) since he had three or more previous
actions that had been dismissed as frivolous, malicious or for
failure to state a claim (Doc. 39).

Hence, the Plaintiff must

pay the full filing fee at the time of filing a new civil action
or be excused from doing so because he faced imminent danger of
serious physical injury at the time the new complaint is filed.
Plaintiff did not pay the filing fee nor demonstrate that he was
in imminent danger.

Furthermore, Plaintiff has not claimed or

pointed out in what way the Order is in error.

Therefore, the

Court finds that the appeal is frivolous and not taken in good
faith and that the request to appeal in forma pauperis is due to
be denied.

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Notwithstanding Plaintiff’s indigent status or the denial
of permission to proceed on appeal in forma pauperis, because
Plaintiff is a prisoner, 28 U.S.C. § 1915 (as amended by the
Prison Litigation Reform Act) requires payment of the full
amount of the filing fee.

After a review of Plaintiff’s

prisoner account statement for the most recent twelve-month
period (Doc. 50), the Court DIRECTS the Commissioner of the
Alabama Department of Corrections or his designee to withdraw
twenty percent of the preceding month’s income credited to the
prisoner’s inmate account and to remit that amount to the
District Court Clerk each time the amount in the account exceeds
$10.00 until the total filing fee of $455.00 has been paid in
full.

These payments shall clearly identify Plaintiff’s name

and the case number assigned to this action, and shall be paid
by check made payable to “Clerk, U. S. District Court.”

Once

adopted, the Clerk is DIRECTED to send the Commissioner of the
Alabama Department of Corrections and the business manager of
the institution where Plaintiff is incarcerated a copy of this
Report and Recommendation and the District Judge’s Order
adopting it.
In conclusion, it is recommended that Plaintiff’s Motion
for Leave to Appeal In Forma Pauperis be denied and that the
District Judge certify in writing that Plaintiff’s appeal is
frivolous and not taken in good faith.
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Since this

recommendation is made after a referral pursuant to 28 U.S.C.
§ 636(b)(3), Plaintiff does not have the opportunity to file an
objection.

Minetti v. Port of Seattle, 152 F.3d 1113, 1114 (9th

Cir. 1998)(“Section 636(b)(3) does not provide a party with then
days to file written objections with the district court.”).

The

Clerk is therefore DIRECTED to refer this Report and
Recommendation to the District Judge without the necessity of a
waiting period.
DONE this 29th day of June, 2011.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

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